Friday, May 13, 2005

Precision Cuts: CAFC finds substantial evidence supported TTAB

In this case, the CAFC affirmed the TTAB's findings concerning an attempt to register the service mark "precision cuts" in the hair cutting business.

The CAFC noted that it will affirm the TTAB's factual findings if they are supported by substantial evidence, citing to Pacer Tech., 338 F.3d 1348 (CAFC 2003). The court noted that "substantial evidence" was such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, citing to Consolidated Edison, 305 US 197, 229 (1938).

[In passing, one notes that the CAFC's conventional approach to "substantial evidence" in Precision Cuts may NOT have been followed in Arthrocare v. Smith & Nephew, decided one day earlier on May 10, 2005.]

The CAFC got into the distinction between a generic and merely descriptive mark. The examiner used results of a NEXIS search to assert "precision cuts" was generic.

The CAFC noted that a reasonable person's credulity would be satiated by hundreds of NEXIS search returns.

Once precision cuts was found generic, evidence of secondary meaning was irrelevant. A generic mark cannot have secondary meaning. Merrill Lynch, 828 F2d at 1569. Finally, the CAFC noted that it was proper for the examiner/board to require disclaiming of a component of the mark not registerable.


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